For the prosecutor in certiorari, William F. Hanlon (DeVoe Tomlinson, of counsel).
For the defendant in certiorari, William Newcorn.
Before Justices Trenchard, Heher and Perskie.
The opinion of the court was delivered by
TRENCHARD, J. The widow of Leon M. Hannaford filed a petition pursuant to our Workmen's Compensation act alleging that her husband (hereinafter called the decedent), while in the employ of the Central Railroad Company of New Jersey as its "real estate and tax agent," sustained an accident arising out of and in the course of his employment on May 27th, 1933, while inspecting property of the company, and that as a result of the accident he died on June 8th, 1933.
The workmen's compensation bureau found and determined in favor of the petitioner. The railroad company appealed to the Common Pleas Court of Union county and that court sustained such finding; and thereupon the railroad company obtained this writ of certiorari to review the determination and judgment.
The railroad company's first point is that "there was no legal, competent proof that the decedent's death was the result of an accident arising out of and in the course of his employment."
The precise contention is that the evidence upon which the bureau and the Common Pleas Court relied to establish the accident, and how and when it occurred, was hearsay testimony and therefore incompetent.
The testimony in question was given by Mr. Braybrooke, who accompanied the decedent on his tour of an inspection of the railroad company's property, which it was taking back from the lessee thereof pursuant to the terms of the lease which had expired. The testimony was to the effect that on May 27th, 1933, they together walked over the premises and climbed a couple of fences and inspected the property;" that "while climbing over a fence" the decedent was "injured in the leg," and he said "something about he hurt his foot" and "I think it was shortly after he climbed over the fence," and "I believe he climbed over this fence and walked down there and as he did that he said he had hurt his leg."
That testimony was regarded by the bureau and by the Common Pleas Court as admissible as a part of the res gestoe. We think that was right.
It is well settled that the res gestoe includes those circumstances which are the undesigned incidents of a particular litigated act. They may be separated from the act by a lapse of time more or less appreciable, and may consist of speeches of anyone concerned, whether participant or bystander. They may comprise things left undone as well as things done. They must be the necessary incidents of the litigated act in this sense that they are part of the immediate preparation for or emanations of, such act, and are not produced by the calculated policy of the actors.
Tested by that rule the testimony was admissible as a part of the res gestoe (Murphy v. Brown & Co., 91 N.J.L. 412; State v. Doro, 103 Id. 88), and in the circumstances of this case settled the fact of the accident and how and when it occurred. The fact that the death occurred as a result of the accident was established by the testimony of the decedent's wife and of his doctor. The wife testified that she saw her husband's injury the next morning and called a doctor. The ...